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Thursday, November 6, 2008

It would be easy to think that ANC President Jacob Zuma’s defamation suits are propelled by a fragile ego, an insatiable lust for power and a strong distrust of media freedom, but I propose a different narrative.

Perhaps Zuma foresaw the current economic crisis and set a plan in motion to secure his fortune. Instead of taking mounting criticism in his stride, he saw an opportunity to cash in to the value of R63-million. Like a shrewd investor he cast the net wide and targeted a host of publications. He even had the sense to sue South Africa's most successful satirist.

Instead of casting Zuma as a chauvinistic pig shooting sperm from a machine gun, let us imagine him as a thrifty squirrel storing away nuts for the winter. To date his strategy has only yielded R50 000 from an out of court settlement, a rather paltry sum when one considers his mounting legal fees.

To save him the trouble of deciding whether to cut his losses and retract his claims or go for broke and take the rest of the country to court, I am offering him some free legal advice on the matter. I will use the recent Zapiro cartoon, depicting Zuma about to rape Lady Justice, as an example of how our courts might deal with Zuma's claims if they reach trial.

The South African law of defamation aims to balance the foundational rights of dignity and freedom. In the Holomisa case it was held that "the value of human dignity in our constitution values both the personal sense of self worth as well as the public's estimation of the worth or value of an individual".

On the other hand, freedom of expression gives people the opportunity to be exposed to a number of different viewpoints so that they can make informed and legitimate decisions about both their political and private lives. It allows for intellectual and artistic progress by provoking discussion and aiding the search for truth. By stifling beliefs that are different from our own we lose the opportunity to challenge, reconsider and perhaps reaffirm our own views.

When confronted with a defamation case our courts engage in a two-stage analysis. First, it is asked whether a defamatory statement was in fact made against the party making the complaint, with the onus resting on the complainant to prove this. Once this has been done, the onus shifts to the defendant to prove that the defamatory statement was justified. Our law defines defamation as the wrongful and intentional publication of a defamatory statement concerning the complainant. Our courts have held that statements must "tend to lower the plaintiff in the estimation of right thinking members of society", to be considered defamatory.

There has been some debate about the meaning of Zapiro's cartoon. Zapiro has argued that the cartoon expresses the opinion that Zuma has abused our system of legal justice. Others argue that it makes a factual claim that Zuma is actually a rapist. The fact that Zuma was previously charged with rape is meant to give credence to this argument. Both interpretations have a defamatory sting, but they give rise to different defences.

In the first instance, Zapiro's defence would be one of fair comment. He would have to prove that the cartoon is an honest expression of opinion, made without malice and based on a set of facts that are true and available to the public. This opinion can be of an extreme nature and it does not have to be shared by members of the public. Zapiro could draw on the fact that Zuma has attempted to use procedural technicalities to bar the NPA from using certain pieces of evidence against him in court, in addition to his general aversion to a trial, as a basis for his opinion that Zuma is attempting to rape justice.

In the unlikely event that the cartoon was considered to be a statement of fact, Zapiro would have to rely on the defence of truth for the public benefit. This means that Zapiro would have to prove that Zuma had either actually attempted to rape someone or in fact succeeded in doing so.

One might presume that Zuma's acquittal in his rape case would count as proof that he is not a rapist. However, criminal cases require the state to prove beyond a reasonable doubt that the accused is guilty of the crime that he is accused of. Civil cases, including defamation cases, require the lower burden of proof, on a balance of probabilities.

Not only does this mean that Zuma would have to endure a rerun of his rape trial, it means that the court may decide that he did engage in the act of rape. This would be similar to the outcome in the OJ Simpson trial. Even though he was not found guilty of murder in his criminal trial, he was found liable in the civil case against him.

In their seminal work on the law of delict, Van der Walt and Midgley argue that "in a democracy, forthright criticism, wild accusations and innuendos - often unfair and unfounded - are part and parcel of political activity and right thinking persons in society do not think less of politicians who are subjected to derogatory statements by opposing politicians or political commentators. The context might cause material that would otherwise have been defamatory to be no more than mere abuse." This additional defence could hinder Zuma's success in a possible case against Zapiro.

It appears that Zuma's investment strategy has been a poor one. Not only does he have minimal prospects of beating Zapiro in court, he has failed to accumulate the R63-million that he had hoped for. Even if my advice falls on deaf ears, I hope that Zuma follows the golden rule of litigation: When faced with the possibility of suing one of two parties, choose the one with deeper pockets. Which means don't sue me, sue my publisher.

Friday, October 17, 2008

This article originally appeared in the Mail & Guardian. It was written by Anthea Buys and features information about my exhibition at the Castle of Good Hope for the Cape Town Month of Photography. Reproductions from the newspaper can be found below.

For the month of October galleries and museums around Cape Town have purged themselves of paintings and display cabinets to make way for the sleek panes of framed photographs. It is the fourth Month of Photography (MoP4), a triennial photography festival steered by the South African Centre for Photography, and everyone who's anyone in the Cape Town gallery scene has jumped on board with related offerings, hoping to catch the overflow from a few central events.

The highlights of MoP4 include a group exhibition at the South African Museum in the Gardens, featuring works by George Hallet, Santu Mofokeng, Tracey Derrick and Sergio Santimano, among others, and the South African National Gallery's much-anticipated retrospective of American photographer Stephen Shore's colour photographs recording American landscapes and urban environments since the 1970s. But the hub of the festival is at the Castle of Good Hope, where three group exhibitions of works by local photographers establish the tone of this year's Month of Photography.Construct, curated by Heidi Erdman, is a sparse version of her and Jacob Lebeko's travelling exhibition, Construct: Beyond the Documentary Photograph (currently at the Durban Art Gallery), which aims to foreground the constructedness of the photographic image. Then & Now is a survey of work produced by eight prominent photographers before and after South Africa's transition to democracy in 1994. Emergence & Emergency, hailed as the theme exhibition for MoP4, is curated by Jenny Altschuler and gives voice to young artists' diagnoses of the difficulties that accompany transformation at both societal and personal levels. If the extensive programme of MoP4 had to be whittled down to a core issue it would be the illustration of change, a project taken especially seriously in Then & Now and Emergence & Emergency. Then & Now comprises 20 works each from Paul Weinberg, David Goldblatt, Graeme Williams, George Hallet, Eric Miller, Cedric Nunn and Gisèle Wulfsohn. Half of these were taken before 1994 and half after, and each artist's sets of images are juxtaposed in such a way that they build a recurrent narrative of progress from political angst to banal personal reflection. Many of the works included in Emergence & Emergency cut straight to the latter, with artists explicitly turning their scrutiny inward into the nature of subjectivity and how this frames the act of photographic looking. Mark Oppenheimer, in a series of photo-collages titled The Process of Unravelling and Reconstructing, cuts and pastes fragments of his subjects' bodies as a metaphor for showing hospitality towards the other. Hasan and Husain Essop, the new it-boys of photographic self-portraiture, clone images of themselves to critique the conflicts faced when the individual is confronted with plural cultural influences. A number of other works on show address the persistent marginalisation of certain groups of people even after South Africa is ostensibly "new" and transformed: Brett Rubin's The State of Freedom is a series of manipulated studio portraits that condemn the mass media for objectifying foreigners living in South Africa, and Buyaphi Mdledle's documentary photographs of Johannesburg after dark suggest that the contemporary South African city is a transitory, alienating space, particularly for migrant workers. All of this comes on the back of MoP4's anxiety to transform its own public image. In the past selection processes for the festival's curated exhibitions have been built around what have been perceived by many artists as exclusionary criteria: these have ranged from the artists' participating fee, now optional and pegged at R400, to the whims of an insular selection committee responsible for the show in previous years. "Because South Africa has a whole history of layers of power, these kind of rules are questioned," Altschuler says, differentiating MoP4 from its precursors. "I'm not boundaried like that. How do you evolve people who are not good enough yet? Not by sending them away until they get better." Emergence & Emergency comprises work from a handful of artists who were not sent away -- although they might have been had they been dealing with a more particular curator. The trade-off for Altschuler's inclusive priorities is that this sprawling show is not consistently convincing, with certain works reading too bluntly, as though contributions to a catch-all student exhibition.

On the contrary, Weinberg's Then & Now would have done well to include a wider, more demographically representative pool of artists with fewer contributions from each. If MoP4 is anything to go by, it looks as though political rejuvenation and hard curating don't quite go hand in hand.Spliced Mark Oppenheimer's project, The Process of Unravelling and Reconstructing, comprises 18 portraits of people from the United States, Russia and Israel. Each was photographed clothed, in underwear and nude, with an object of personal significance. They all answered nine questions about themselves and their views on religion, politics and sexuality. The photographs have been bisected along the waist and combined to form 324 unique images. Oppenheimer says: "The viewer is invited to participate in the process of unravelling and reconstructing by piecing together the fragments of the subjects' bodies and testimonies. In addition to exploring broad philosophical questions the project raises specific issues related to the nature of gender identity and interpersonal relationships."MoP4 runs at various venues throughout Cape Town. A detailed programme of events can be accessed at the South African Centre for Photography's website: www.photocentre.org.za/festival.htm

The Films and Publication Board has effectively banned the award winning film XXY by refusing to grant the Out in Africa Film Festival a licence to show it. This should bring back warm memories for those harking back to the glory days of Apartheid when you could not watch The Rocky Horror Picture Show, read Black Beauty or pick up a copy of Scope without seeing stars. For the rest of us, this outrageous act of censorship ought to be viewed as a call to arms. As an emerging democracy we can not allow our newly won freedoms to be so easily trampled on.

XXY received two awards at Cannes and it has been submitted to the Oscars for Best Foreign film. The film centers on the life of a hermaphrodite uncovering his/her sexual identity. Despite the fact that the actress playing the role is 22 years old, the board has justified the ban on the basis that the film amounts to child pornography. If you thought that child pornography necessarily involved the use of children, then you thought wrong. Since the character in the film is portrayed as a 15 year old, our legislation deems it contraband.

The Films and Publications Act prohibits two types of child pornography. The first type, "real child pornography", involves actual children. This is the type of pornography that evokes a universal sense of moral outrage. It is not only that the material is offensive; it is the permanent record of a particularly vile form of child abuse. Children that are involved in pornography are harmed via its creation and the distribution of the material is a further harm against their dignity and privacy.

The legislation also takes aim at another form of child pornography. This type does not involve real children. This "virtual child pornography" is made up of a number of different types of erotic material. It includes paintings, cartoons, sketches and written descriptions of minors involved in sexual conduct. It also includes depictions of adults, which are represented as being under the age of 18, engaged in sexual conduct.

In the recent case of Ashcroft v. Free Speech Coalition the United States Supreme Court held that virtual child pornography does "not involve, let alone harm, any children in the production process... The statute proscribes the visual depiction of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature throughout the ages." In spite of this, the South African legislation specifically states that artistic films and publications are not exempted from prohibition if they constitute virtual child pornography.

XXY is not the only work on the chopping block; a host of pieces are threatened by the Act, including paintings by the prominent artists Gustav Klimt and Egon Shiele. The recent Oscar winning films Traffic and American Beauty both feature scenes depicting woman under the age of 18 involved in sexual conduct. The most famous love story ever written, Romeo and Juliet, involves a relationship between two teenagers, one of whom is only 13 years old. Several adaptations of the play have been produced for film and some of them show the lovers involved in sexual conduct. Given the patent absurdity of prohibiting the above mentioned works of art, it must be asked why virtual child pornography is banned in the first place.

Firstly, it may be argued that since virtual child pornography may be used to entice children to have sex with paedophiles, it ought to be prohibited. This argument fails on the basis that innocent objects like cartoons and candy may be misused by paedophiles to achieve the same end of seducing children, but we do not think that it would be appropriate to prohibit those items. Furthermore, the prohibition would not be an effective way of preventing pedophiles from enticing children, since they would continue to entice children with innocent objects.

Secondly, in some cases it is not possible to distinguish virtual child pornography from real child pornography. This will be the case where adults are made to look younger then the age of 18 or where images are created through the use of digital imaging software, which does not make use of performers at all. It is therefore argued that in order to prosecute real child pornographers it is necessary to prohibit the virtual counterpart.

However, in the Ashcroft case it was held that if it really is the case that a certain class of virtual images is indistinguishable from real images, "the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerised images would suffice." It seems that virtual child pornography would have the positive effect of reducing the amount of real child pornography being produced; it would in fact be saving children from suffering abuse.

In essence, what is being argued is that in order to prohibit unprotected forms of expression it is necessary to prohibit forms of expression that would otherwise be protected. However, in the Broadrick case this type of argument was held to be an affront to the very principle of freedom expression.

In the same way that it is better to let ten guilty people go free than to punish one innocent person, "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be muted".

Thursday, July 24, 2008

In 1984 an elite army unit was sent into the hills of Gonder to complete a secret mission and save thousands of lives. I am not talking about an episode of the A team or Lord of the Rings fan fiction, I am talking about Operation Moses. For some time the Israeli government had been aware of an isolated community of Jews living in Ethiopia. There was debate about whether they were the product of King Solomon and the Queen of Sheba or the remaining descendants of the lost tribe of Dan, but it was certain that they would be massacred in an escalating civil war if nothing was done. With little time to spare, the army was sent in to perform one of the most dangerous rescue missions in military history.

The soldiers parachuted into a remote mountain village and within minutes they realized that their mission was impossible. In order to airlift the community to safety they would need at least a two kilometer landing strip for their aircraft to take off and they were confronted with nothing but rocky terrain. The nearest airport was being closely watched by Ethiopian militias so it could not be used for the rescue. The war had caused wide-spread famine and disease in the region. Given the severity of the situation it was decided that the children would be taken first and more units would be sent back for their parents.

Each group of 500 children was lead by 12 soldiers, one soldier for each biblical tribe of Israel. With little more than a map and a compass to guide them, they wandered through the desert reenacting a modern day exodus to the Promised Land. They travelled under cover of night for fear that they would be spotted by hostile soldiers and be captured or killed. As the dawn broke Israeli aircraft flew over their heads and dropped supplies for the journey. During the day they hid in caves and fields of crops; while the children rested the soldiers planned the night time journey.

After seventeen days they arrived in Sudan. With enormous relief the soldiers showed the children the jets that were waiting to take them to Jerusalem. The children stared at the jets and the desert that lay behind them and flat out refused to board. The soldiers tried everything from threats to candy to get them inside but they were met with nothing but resistance. Eventually the translator that had accompanied them on their journey asked if he could say a few words to the children. Almost immediately the children got up and boarded the aircraft. The soldiers looked on with bewilderment and asked the translator what he told them. He quoted from the prophet Isaiah “But they that wait upon the Lord shall renew their strength; they shall mount up with wings as eagles; they shall run, and not be weary; and they shall walk, and not faint.” He knew that that the children were scared to get on to the airplanes because they had never seen them before, so he told them that they were eagles waiting to take them to Jerusalem.

Millions of Zimbabweans are threatened with death at the hands of their government and they are seeking refuge in South Africa. Instead of greeting those in need with compassion, some have reacted with cruelty. After having their shops ransacked and their homes burned to a crisp many are left with nowhere to turn. Maybe if we took a moment to notice what Israel does right, instead of showering it with blame, we would know how to help those in harm’s way.

Friday, July 4, 2008

[I can't define what pornography is.] "But I know it when I see it." Justice Stewart of the U.S. Supreme Court

IntroductionThe literature on the moral, legal and social issues relating to pornography is extensive, but unfortunately a disproportionately small amount of effort has been expended on coming up with a satisfactory definition of the term. The quote at the top of this page seems to exemplify the frustration that many writers feel when they try to tackle the Herculean task of defining pornography. For there to be any real progress in our understanding of how to regulate pornography, it is imperative that there is a strong consensus about what is meant by the term. I will assess a number of rival definitions. In order to assess them in an adequate manner I will start off by clarifying what a satisfactory definition of the term needs to do, in addition to this I will also provide a paradigmatic set of examples of pornography and non-pornography.Formulating a Good DefinitionA good definition of pornography should largely concur with our intuitive understanding of what pornography is. However the possibility should be left open for it to reshape our intuitions and either exclude materials that were previously considered pornographic or include new materials as a part of what is deemed pornography. The definition should not be too broad and include objects that are clearly not pornographic, nor should it be too narrow and exclude objects that are clearly pornographic.

A vast array of materials have been described as pornographic throughout history. During the Victorian age images displaying a woman’s ankles were considered pornographic while those sorts of images are not considered pornographic today. It is not only the passage of time that has affected what is deemed pornography; different cultures often disagree about what pornography is. I don’t think it is only the case that some historical or cultural groups are mistaken about what pornography is, I would argue that a good definition should make allowance for the fact that different groups make differing judgments about whether particular objects are pornographic or not. I would argue that this can be achieved by acknowledging that the context that a particular image is placed in plays a role in deciding whether it is pornographic or not. This means that a good definition must be able to take social, historical and cultural contexts into account. For example a particular image of a woman’s exposed breasts may be considered pornographic if it is displayed in Playboy but not if it is displayed in a plastic surgeon’s portfolio.

People do not have homogenous sexual tastes, so the definition needs to able to factor in the diverse range of sexual preferences that people have. Not everyone is aroused by depictions of conventional heterosexual sex. For example shoe fetishists are sexually aroused by fondling shoes or viewing images of shoes.

There is a strong perception that art and pornography are mutually exclusive terms and that a piece of pornography by definition cannot have artistic merit. I dispute this on the basis that at least some of the materials that we ordinarily think of as pornography share features that we associate with works of art. The creator of a pornographic image can employ commonly recognized artistic techniques so that the image is composed and lit in a manner that is both aesthetically pleasing and sexually arousing. This means that a definition of pornography should make allowance for the fact that some works of art are also works of pornography.

The goal of the definition is to define the term pornography, but it must be emphasized that this is only a starting point. Pornography can be further categorized through the use of general descriptions as well as descriptions that refer to content. The terms soft-core, hardcore, violent, vulgar, empowering, degrading, educational and artistic would be a few general descriptions of pornography. The content could include reference to particular sexual acts as well as the sex, race, orientation and age of the parties performing in the pornography. A full description of a particular piece of pornography could be something like artistic interracial lesbian fist fucking granny porn.Paradigms of Pornography and Non-PornographyPornography is material that is communicative by nature and it can take the form of a moving or still image, a written text or even an audio recording. The images found in the pages of Penthouse, Hustler are prime examples of what is generally considered to be pornography as are books like the Marquis de Sade’s The 120 Days of Sodom and movies like Deep Throat and Backdoor Sluts 9. However not all sexually explicit materials are pornographic. Representations of explicit sex acts can appear in documentaries, sex education booklets, medical diagrams, scientific journals and in works of visual or literary art in a non-pornographic way. It is of vital importance that a definition of pornography is able to distinguish between these two categories.

Rival Definitions of PornographyHaving established what a good definition of pornography ought to do, I will now proceed to examine a number of rivaling definitions of the term.

Sex and ProfitOn one view pornography is “Any object mass produced and distributed with the purpose of marketing it for a profit by appealing to our sexual interests”

This definition fails on the basis that it produces results that are grossly counterintuitive. Firstly, it deems non-pornographic objects like sex toys, flavored condoms and lingerie as examples of pornography. Secondly a vast number of images that are generally considered pornographic are freely available on the internet. The definition would also imply that if a particular sexually explicit image was being sold on a website it would count as pornography but the same image would not count if it were being offered for free on another site.

ObscenityOn a second view material is pornographic if “(a) to the average person (b) the dominant theme of the material as a whole appeals to the prurient interest in sex; (c) the material [is] patently offensive because it [offends] contemporary community standards, relating to the description or representation of such matters...”

It must be noted that obscenity definitions can be understood as either descriptive or normative. In the first case it refers to what the average person is actually offended by and in the second, what the average person ought to be offended by.

Using a descriptive account would require one to conduct a survey that could determine which sexually explicit materials were considered to be offensive by the average person. The problem with this approach is that materials that relate to sex or have sexual content but are not ordinarily considered pornographic may be found to be offensive and be deemed pornographic by the definition. An example of this may be an advert for sex toys or images of the statue of David. Furthermore in societies where people are highly tolerant, magazines like Hustler and Penthouse would not be found to be offensive and by definition could not be considered pornographic. This would mean that pornography could be eradicated from a society by increasing tolerance towards sexually explicitly materials or by removing people that are offended by such material from the society.

The problem with the normative definition is that it lacks the necessary information to determine if a sexually explicit image is in fact pornographic. For example if a person were to view a sexually explicit image and not be offended by it, it would not be clear if the image was non-pornographic or if the viewer of the image was not decent or not easily offended. On the other hand if the image does offend it may be the case that the image is non-pornographic and the viewer is a prude. Some separate set of criteria would be required to determine what one ought to be offended by, but if this could be determined then that set of criteria would tell us what pornography is, not the obscenity definition, which means that the obscenity definition is either uninformative or superfluous.

SubordinationDworkin and Mackinnon define pornography as “the sexually explicit subordination of women through pictures and or words.”

The claim can be interpreted in two ways. Firstly, that the image or text makes a general claim that women are inferior. Secondly, that the particular woman in the image or text is being subordinated. In the first case it is far from clear that any sort of general claim is being made by particular articles of pornography. A novel can depict a specific woman in a particular light but the characteristics ascribed to her apply to her only, not all women. For example in Hamlet Shakespeare represents the character of Ophelia as submissive and emotionally unstable, but this does not mean that all women are represented as sharing her qualities. In the second case it is also not clear that the actual woman in the image is being subordinated. I would argue that in many cases the woman is adopting the role of a sexual subordinate. For example, in the film Bitter Moon, Emmanuelle Seigner plays the role of Mimi, who is at times a sexually subordinate character. It would be absurd to conclude that Emmanuelle was actually sexually subordinate just because the character that she played was. Furthermore images of a woman actually being subordinated would often be better described as documentary images not pornography, as in the case of photographs of actual rape.

In order to further explain what is meant by their definition they provide a list of cases that they believe constitute pornography.

(i) Women are presented dehumanized as sexual objects, things, or commodities.(ii) Women are presented as sexual objects who enjoy pain or humiliation.(iii) Women are presented as sexual objects who experience sexual pleasure in being raped.(iv) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt.(v) Women are presented in postures or positions of sexual submission, servility, or display.(vi) Women’s parts- including but not limited to vaginas, breasts or buttocks- are exhibited such that women are reduced to those parts.(vii) Women are presented as whores by nature.(viii) Women are presented as being penetrated by objects or animals.(ix) Women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual.The following clause was included in an earlier document: We also provide that the use of men, children, or transsexuals in the place of women is pornography.

Along with the types of sexually explicit magazines and videos that one would find in adult bookstores the definition adds other items to the list. Section (v) would include many of the images that we are used to seeing in adverts and magazines, of women displayed in a sexual way to sell a product or model clothing. Section (vi) would include works of art that only display a part of women’s body. Rene Magritte’s Le Viol would be a prime example since it depicts a women’s face made up of a set of breasts and a vagina. Numerous works of literature, including the Bible would be considered pornography by a few of the clauses. Section (ix) would include testimonies describing the sexual abuse of women and documentaries depicting harms caused by sexual violence.With this in mind the producers and distributors of pornography would not only include the people that produce and sell copies of Hustler and other X rated material. Prominent writers, artists, filmmakers, mainstream cinemas and bookstores, art galleries and even museums would be included on the list. For these reasons the definition is unacceptably broad. However certain radical feminists might embrace the fact the definition is so broad because they aim to use the definition as basis for deciding what material ought to be censored or suppressed and they would prefer to censor a broader category of materials. If this move is made then it must be conceded that the definition of pornography that they provide is not a conventional one but rather a stipulative one.

Intention and Effect Pornography could be defined as material that is intended to cause sexual arousal. The problem with this account is that an inept pornographer could take photos of people dressed in oversized and unflattering gym clothes with the intention of causing arousal without it actually doing so. A further objection is that people that create works of non-pornography have a vast range of intentions about their work, one of which may be a weak intention to cause the viewers of their work to become sexually aroused. The definition would have the implication of classifying a lot of what we do not ordinarily consider pornography as pornography.

Pornography could rather be understood as material that actually causes sexual arousal. Given the enormous range of sexual desires that people have this definition would make it possible for almost any form of expression to be considered pornographic. For example an ordontophiliac is aroused by the extraction of teeth and would presumably be aroused by photos of people having their teeth taken out. A capnologniac is aroused by watching someone smoke so the definition would have to include cigarette commercials as pornographic. Rea points out another shortcoming of the definition. Imagine that the latest issue of Hustler is being printed; it is then sent to the newsstands and read by someone until it causes that person to become aroused. On the definition the magazine can only be considered pornography at the moment that it causes the reader to become aroused, which seems grossly counterintuitive. Furthermore both of these definitions would consider a drug like Viagra pornography since Viagra is intended to cause arousal and it does actually result in such arousal.

While it is clear that the above definitions in this section generate counterintuitive results, I think that a modified definition can be produced that avoids their weakness. The definition takes the following form: Pornography is communicative material produced with the key intention of causing sexual arousal in the targeted audience, and it is reasonable to expect the material to succeed in causing such arousal.

This definition avoids the problems associated with the case of the inept pornographer, since it is not reasonable to expect the target audience to become aroused. It also manages to avoid deeming all forms of expression as examples of pornography, while managing to take a wide variety of sexual preferences into account when determining what counts as pornography. For example a magazine created for dental fetishists that succeeded in arousing people with that particular predilection would count as pornography. If this sounds counterintuitive imagine the cover of a magazine with an image of a woman at the dentist with the following caption: “Watch this dirty whore get her mouth drilled for your viewing pleasure.” With this in mind it is plausible to view this type of magazine as pornographic.

The definition can also explain why the context of a text or image can change it status as a piece of pornography. The image of the woman’s ankles was actually pornography in the Victorian age because it was intended to cause arousal and it succeeded in its goal. In a modern context it is not pornography because it is not reasonable to expect the image to achieve the goal of causing arousal.

The definition also manages to avoid the problem of hustler only becoming pornography once it causes someone to become aroused since the moment that it is produced there is a reasonable expectation that it will cause its target audience to become aroused.

Finally it has the benefit of providing a value neutral account of what pornography is. Unless one is inclined to think that there is something inherently good or bad about being sexually aroused, there does not appear to be anything intrinsically good or bad about pornography. For the purposes of regulation it becomes much easier to target specific types of pornography by drawing on the list of general and specific descriptions of pornography that I provided earlier. Using the descriptive categories makes it easy to avoid regulating pornography that is morally neutral or praiseworthy.

The Sanctity of Marriage ObjectionRea argues that sexually explicit images produced by married couples of each other ought not to be considered pornography because of the intimate bond between the parties and because the material is only intended for private viewing. He goes so far as to claim that in cases where materials become unintentionally available to the public, they would not count as pornography. However these types of images are intended to sexually arouse the couple that make and view the material and they do actually cause such arousal. This means that if Rea’s objection holds then the proposed definition fails on the basis that it includes non-pornography in its account of what pornography is.

I would argue that the sanctity of the marriage should not prevent the images from being considered pornography. There are two examples which substantiate this point. Firstly, some sexually explicit images that are commercially available and advertised as pornography are made by amateur couples, who are intimately involved or married to each other. These images seem like clear cases of pornography. Secondly, one of the best known examples of a pornographic film was made by Pamela Anderson and her then husband Tommy Lee on their honeymoon. The footage was intended to be for their private consumption but it was stolen and made publicly available over the internet. I would argue that placing the footage in the public sphere was not the reason for the video being considered pornography; if it had stayed in the private possession of the married couple it still would have been pornographic. Neither the sanctity of a marriage nor the small range of people that the material is intended to be viewed by should affect that object’s status as a piece of pornography.

The Profit Machine ObjectionRea mounts a further attack against the definition through the use of a thought experiment. He asks us to imagine that a computer programmer has developed a program that will produce products that are guaranteed to be profitable. In order for the program to operate it requires a detailed list of information about the group of people that the product is intended to be sold to. The programmer enlists a team of anthropologists to gather data. The team is deployed on an island in the Pacific Ocean and they set to work observing the islanders and gathering all of the necessary data. The data is then fed into the computer program. The program processes the data and produces a product that is very similar to Hustler magazine. All of the images in the magazine are generated by the computer but they are indistinguishable from actual photographs. The magazine is sold on the island for a profit and it is treated in the same way that we treat pornography. The computer programmer never finds out what product is being sold and he is satisfied with taking his share of the profits. Rea argues that none of the parties involved intend to produce materials that will cause the consumers of those materials to become sexually aroused. The computer programmer only intends to make a profit, the anthropologists only intend to gather information and the computer has no intention at all since it does not have the capacity to have an intention. Rea argues that the magazine being sold on the island is an article of pornography and the fact the definition can not take this into account shows that it is an unsatisfactory definition.

In order to dispute his claim I offer an extended version of his thought experiment. In this version in addition to the computer generating a magazine that resembles Hustler, it also creates set of objects that resemble sculptures of people dancing and another set of objects that resemble sculptures of people engaged in sexual activity. After all of the products are sold on the island, a volcanic eruption occurs. No one is harmed but by an amazing coincidence the lava from the eruption sets and forms a set of objects that resemble sculptures of people dancing and having sex. The village sculptor on the island is dismayed since he has just finished creating a set of sculptures of people dancing and having sex, he is worried that all of the objects that have recently been introduced to the island will affect his business. All of the objects that look like people dancing are treated by the islanders as works of art and all of the objects that look like people having sex are treated as works of pornography. The objects created by the volcano were not created with any intention; they are natural phenomena that resemble works of art and works of pornography. I would argue that these objects ought not to be considered actual works of art or actual works of pornography despite the fact they are treated in that manner by the islanders. First of all, nature is full of objects that resemble works of art but it would be strange to consider them actual works of art, this principle also extends to works of pornography. Second of all, treating an object in a particular way does not mean that the objects loses its identity and becomes the object that it is being treated like. For example if one were to treat a dog like a pony by equipping it with a saddle, feeding it carrots and riding it around a race track, it would remain a dog and not be a pony.

To my mind the natural process that the objects produced by the volcano go through is directly analogous to the process that the objects churned out by the computer go through. In both cases there is no intention to produce either works of art or works of pornography. In both cases the objects that are produced resemble works of art and works of pornography. On the basis that the two processes are analogous, and the fact that it would be counter intuitive to consider the objects produced by the volcano as works of art or pornography, I think the objects produced by the computer should not be considered art or pornography. However the sculptures produced by the island sculptor would qualify as both works of art and pornography. This means that the definition that I have offered can be rescued from Rea’s objection.

ConclusionI have provided an account of what a good definition of pornography should be, as well as providing examples of pornography and non-pornography. I have used this to assess all of the rival definitions of the term that have been discussed. I have argued that the definition: “Pornography is communicative material produced with the key intention of causing sexual arousal in the targeted audience, and it is reasonable to expect the material to succeed in causing such arousal” meets the requirements of a good definition and it manages to survive the objections made by Rea. I have also demonstrated the merits of using a value neutral definition and explained how specific forms of pornography can be targeted for regulation through the use of general and content specific descriptions.

Monday, June 23, 2008

Last night one of the greatest free thinkers died. George Carlin was not only a stand up comic, he was a crusader for free speech. He wasn't afraid to speak his mind about the issues of the day and stand up to the powers that be, no holy cow was left unturned. He will not only be remembered for his poetic rants about religion, sex and drugs. His impact on what can and cannot be said will continue to ripple through time. Below you can watch some of his classic monologues and part of his last performance on HBO. The rest of the show can be watched here.